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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 74364
Experience:  Qualified Solicitor
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My mnae is magdalena I have few questions, my company sends

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hi
JA: Hello. How can I help?
Customer: my mnae is magdalena I have few questions
JA: Where are you? It matters because laws vary by location.
Customer: my company sends me to occupation healh. can the company do before I go there Assessment what can I do at work? mansfield
JA: What steps have you taken so far?
Customer: i been told today i will go occupational health
JA: Anything else you want the Lawyer to know before I connect you?
Customer: can i refuse occupational healh for my medical history?

Hello, I’m Ben, a UK lawyer and will be dealing with your case today. I may also need to ask some questions to determine the legal position.

Is there a reason you want to refuse?

Customer: replied 1 year ago.
im ashamed and its private
Customer: replied 1 year ago.
i prefer on mail
Customer: replied 1 year ago.
I have no money
Customer: replied 1 year ago.
You can ask me questions
Customer: replied 1 year ago.
Please see what is problemFirstly my Shift Manager has started recording almost every conversation we have on paper and making a file note for almost everything.He has stated i need to visit my GP and get a letter from them stating when i will recover from my depression, also a letter to state when i will not have back ache anymore. Its policy that i should be 50% productive which i believe i am but at some points my back is in pain and it is unsafe for me to lift constantly. I feel i do as much as i can within the company guidelines.I would like to know what a companies stance would be regarding taking me through a unfit to work process due to my depression. I currently dont believe i have had excessive time off through this illness.My Shift Manager is also stating i am failing to be as positive as is required. I have told him that this is difficult some days due to my illness however im worried he will use this against me.He is ensuring he is doing everything above board and legally however it is quite obvious he is treating me in a way which is causing me anxiety and stress when im at work.I feel he is taking all steps to make a case to dismiss me from my role as team leader. I am certain compared to lots of other colleagues on site i am not being treated consistently.

How long have you worked there for?

Customer: replied 1 year ago.
13 years

Ok thanks are you ok to wait until the morning for my reply please?

Customer: replied 1 year ago.
im ok
Customer: replied 1 year ago.
my job role is team leader thank you and im waiting for your answer

Hello again, whilst the employer can ask you to go and see OH, you cannot be forced to share your medical history with them.

In terms of your rights in the event they are considering dismissal, capability, where an employee is unable to perform the job they were employed to do due to ill health, is a potentially fair reason for dismissal under the Employment Rights Act 1996. Capability is assessed by reference to the employee’s skill, aptitude, health or any other physical or mental quality.

Apart from showing that capability was the reason for dismissal, the employer would also be required to follow a fair procedure. The leading case on fairness in these situations said that the employer should establish the true medical position and consult with the employee before deciding whether to dismiss. Another important consideration is whether any reasonable employer would have waited longer in the circumstances before dismissing the employee.

When looking at the reasonableness of such a dismissal, the tribunal will usually look at the following factors:

· What was the nature of the illness and did the employer make attempts to gather more information on it, such as asking for medical reports or examinations

· The prospects of the employee returning to work and the likelihood of the recurrence of the illness

· The need for the employer to have someone doing the work

· The effect of the absences on the rest of the workforce

· The employee's length of service

· Was the employee consulted over their position

· The availability of other suitable employment that the employee could do instead

In any event, dismissal should be used as a last resort. Only when it is obvious that the employee cannot continue in their job, that their absences are having a detrimental effect on the business and that there were no alternative roles available for them to do, would dismissal become a fair option.

It is also important to consider the additional rights someone would have if the condition that is affecting them amounts to a 'disability'. This can have a broad meaning from a legal perspective and there is no single list of medical conditions that qualify. Potentially anything can amount to a disability if it meets the required criteria.

The Equality Act 2010 defines a disability as a “physical or mental impairment that has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities”.

I will break this definition down and examine it in more detail:

  • Physical or mental impairment – this can include nearly any medical condition, be it physical or mental
  • Substantial effect – the effect must be more than minor or trivial
  • Long-term - the impairment must either have lasted or be likely to last for at least 12 months
  • Normal day-to-day activities – these could include anything considered ‘normal’ in a person's normal daily routine (e.g. shopping, reading and writing, having a conversation or using the telephone, watching television, getting washed and dressed, preparing and eating food, carrying out household tasks, walking and travelling by various forms of transport, and taking part in social activities)

If a person satisfies the above criteria, they will be classified as being disabled and will have automatic protection against discrimination. This means that they must not be treated unfavourably because of their disability. In addition, their employer would have a duty to make reasonable adjustments if they are likely to be placed at a substantial disadvantage when compared to non-disabled employees.

So in summary, if the employer has not taken time to investigate the true medical position, whether suitable employment was available and generally considered the effects the employee's continued absence would have on the business, any dismissal could potentially be unfair. In addition, if they have failed to make reasonable adjustments in the event the employee's was classified as disabled, this could also amount to disability discrimination.

The first step is to formally appeal a dismissal with the employer using the internal appeals procedure. After that, the only option available is to submit a claim in the employment tribunal for unfair dismissal (subject to having at least 2 years' continuous service), and/or pursue a claim for disability discrimination (no minimum service required for that).

Does this answer your query?

Customer: replied 1 year ago.
i have few question
my mamager wants me to go to warhouse with him before going to Occupational Health. and I have to show him what I can do and what not. how much I can lift or bend over. can he do something like that and I have to do occupational Health anyway?  if I agree to show my medical history, will the company also have access to it, for example, will the company see all my illnesses? I have women's things there that are very embarrassing.can I lose my job or be degraded after OH?

It’s a strange way for the employer to work out what you can and can’t do, especially as you may potentially get injured in the process. I would resist that and ask him to determine your capabilities through OH and any other medical evidence.

You can decide what the employer sees from your medical records. You can always disclose your history to OH n the condition that they are the only ones that see it and do not disclose anything to the employer without your consent.

After OH your rights remain as mentioned in my earlier response and that is what protection you have against dismissal.

Does this clarify things a bit more for you?

Customer: replied 1 year ago.
can I refuse if he ask me to show him what I can and can’t do?

You can and should advise him that this is not an appropriate way to go around this – it is not an examination of what you are capable of

Customer: replied 1 year ago.
thank you

All the best

Customer: replied 1 year ago.
thank you

No worries

Customer: replied 1 year ago.
Can you tell me what questions can I get from OH?
I am very stressed there and I am afraid that I will answer badly through stress

Impossible to say as they will always depend on the specific circumstances, the nature of the job, the nature of your conditions, what they are trying to achieve and so on. You can always ask them in advance to give you details if they can

Ben Jones and 6 other Law Specialists are ready to help you
Customer: replied 1 year ago.
ok i understand

ok good